“Virtual” Pro Bono Advice? Legal

from May 2023 Newsletter

(Senior Assistant City Attorney – Sioux Falls Continued)

After discussing the service with others on the Bar Commission’s Access to Justice sub-committee, we decided to ask the Ethics Opinion Committee for some input on the application of Rule 6.5 in South Dakota in regards to participating in this service. Generously, the committee provided us with an opinion, which is published in this same issue of the Newsletter.

So, after much procrastination on a sunny Sunday afternoon at home, I decided to make the leap and sign up. After accepting the “Agreement” page referenced above, I had to fill in my information to confirm that I am in fact an attorney licensed to practice in South Dakota. The hardest part was getting my password manager app to suggest and save a password. (Note: password managers are the worst and the best.) This application information is then immediately forwarded to the SDFLA website administrator for application review and approval. After submitting, I received an email confirmation saying that my application would be reviewed soon. Which meant I still had time to go to the grocery store and do some laundry. Before I knew it, it was Monday morning and there in my inbox was a shiny approval email from SDFLA letting me know that I had been approved as an attorney volunteer and could log in to the website ANY TIME to see what legal questions from my fellow South Dakotans are waiting for me.

Stay tuned...

Question Presented: When a lawyer is providing services under a pro bono program sponsored by a nonprofit organization or court on a short term basis, without expectation that there will be future representation, such as for a legal help line or free legal clinic, what obligations does the lawyer have to check for conflicts of interest, and are there any particular record keeping requirements or recommendations.

Short Answer: The lawyer is not required to check for conflicts, but the lawyer must decline to provide advice if the lawyer has actual knowledge that the lawyer or the lawyer’s firm’s representation of another client, either concurrently or in the past, gives rise to a conflict of interest.

Rules Implicated: 6.5

Facts

Lawyer is one of several lawyers participating in a free program whereby low-income South Dakota residents can submit legal questions to be answered by a South Dakota lawyer. Lawyer wants to know what obligations Lawyer and other participants in the program have to check for conflicts of interest arising from their representation or their firms’ representation of other clients, and whether the Committee has any advice or suggestions regarding best practices.

Analysis

Rule 6.5(a)(1) provides that a lawyer who is participating in a nonprofit program providing short-term legal services without expectation of further representation, such as the circumstances Lawyer has described, is subject to Rules 1.7 and 1.9(a) regarding concurrent conflicts and duties to former clients only if the Lawyer knows that providing the advice through the program involves such a conflict, including imputed conflicts under Rule 1.10. Rule 1.0(f) defines “knows” and “knowledge” to mean actual knowledge. Consequently, the Lawyer does not need to decline to answer a question through the program unless the Lawyer has actual knowledge that the Lawyer or Lawyer’s firm has or has had previous representation that gives rise to a conflict, and does not need to check for conflicts.

The Ethics Committee is not permitted to provide the opinion requested about “best practices” in open ended fashion, but could, potentially, opine whether a specific practice would be permitted or desired under the Rules.

Fellow State Bar Members:

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